The Board of County Commissioners of The County of Republic v. The United States Fidelity & Guaranty Company

• Decision Date: 10 July 1915
• Docket Number: 19,628
• Court: Kansas Supreme Court
• Parties: THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF REPUBLIC, Appellant, v. THE UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee, and HENRY M. ROTH

150 P. 590

96 Kan. 255

THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF REPUBLIC, Appellant, v. THE UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee, and HENRY M. ROTH

No. 19,628

Supreme Court of Kansas

July 10, 1915

Decided July, 1915.

Appeal from Republic district court; JOHN C. HOGIN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Motion to Make Definite and Certain--When Motion Will Lie. The motion to make definite and certain lies only when the pleading attacked is so indefinite and uncertain that the nature of the charge or defense is not apparent. (Civ. Code, § 122.) This does not mean indefinite and uncertain according to the refinements and technicalities of the common-law system of pleading, and a pleading is sufficient as against the motion which fairly apprises the adversary of what the claim or defense is.

2. INDEMNIFYING BOND--Failure to Give Notice of Default of Principal--When a Defense to Action on the Bond. The defendant gave a bond to indemnify the plaintiff against loss resulting from breach of a contract to do public work. The bond contained the following provision:

"First: That no liability shall attach to the Surety hereunder unless, in the event of any default on the part of the Principal in the performance of any of the terms, covenants or conditions of the said contract, the Obligee shall promptly and in any event not later than thirty days after knowledge of such default, deliver to the Surety at its office in the City of Baltimore, written notice thereof, with a statement of the principal facts showing such default and the date thereof; nor unless the said Obligee shall deliver written notice to the Surety at its office aforesaid, and the consent of the Surety thereto obtained, before making to the Principal the final payment provided for under the contract herein referred to."

It is held that the notices provided for were intended to afford the insurer an opportunity to protect itself against loss should it need and should it be able to do so. Failure to give the notices did not affect the liability of the insurer unless loss resulted as a direct consequence, and then only to the extent of the loss, which the defendant was required to plead and prove.

H. H. Van Natta, county attorney, for the appellant; W. D. Vance, and R. E. McTaggart, both of Belleville, of counsel.

Nelson J. Ward, of Belleville, for the appellee.

OPINION

BURCH, J.

The action was one to recover on a bond given to indemnify the plaintiff against loss resulting from breach of a contract to curb and gutter the public square in the city of Belleville. A demurrer was sustained to the petition and the plaintiff appeals.

The petition pleaded the contract with the contractor, the bond given by the defendant, performance of the work, and payment of the price to the contractor. The contract was dated June 1, 1911. It provided that the work should be done according to certain specifications and that the whole curb and gutter should continue in perfect condition for two years from date of completion and acceptance. On completion of the work the contractor was to notify the county board, who within ten days were to inspect the work and if it complied with the contract were to pay for it. The work was to be completed in sixty days. The bond was dated June 5, 1911, and contained the following provision:

"First: That no liability shall attach to the Surety hereunder unless, in the event of any default on the part of the Principal in the performance of any of the terms, covenants or conditions of the said contract, the Obligee shall promptly and in any event not later than thirty days after knowledge of such default, deliver to the Surety at its office in the City of Baltimore, written notice thereof, with a statement of the principal facts showing such default and the date thereof; nor unless the said Obligee shall deliver written notice to the Surety at its office aforesaid, and the consent of the Surety thereto obtained, before making to the Principal the final payment provided for under the contract herein referred to."

The petition charged that the work was not done according to the specifications, the particulars being stated, so that it was unsuited to the purpose for which it was designed, but that the contractor so completely covered up his nonobservance of the specifications that it was impossible to detect the defects in the work, which were not revealed until shortly before January 27, 1913, when the defendant was notified by registered mail of the contractor's default.

A motion was made to require the plaintiff to itemize the breaches of the contract, to itemize the plaintiff's damages, to state when the plaintiff learned of the contractor's default, to state when the plaintiff notified the defendant of the contractor's default, and if a written notice were given the defendant, to attach a copy to the petition. The motion was overruled. It is argued that the petition should be construed strictly against the plaintiff because it induced the court to overrule the motion, and that the demurrer admits no facts defectively pleaded to which the...